a four ounce sample, however, which has been kept stoppered since treating shows 15 color on filtering through filter paper, and Gray in his amended specifications tells us that— a sample is then drawn from the still and after being filtered through paper is examined as to its color. He is not therefore in a position to claim that the filtration could not be accomplished "through the medium of paper." And as this operation of filtration does not require chemical knowledge, certainly there is nothing in the record which shows that it does, we think that King's testimony is not discredited on the theory advanced by Gray. King, when interrogated as to how he came to remember that it was on February 5 he assisted McAfee in performing the process referred to above, said that he did so about three hours, shut fire off, and allowed mixture to run over night, something which we had not done before and have not done since. He also said that he had performed many times the process of warming lubricating-oil with dry aluminum chlorid from about 150° F. to about 212° F.; that he was able to recognize the oil made by this process before it was filtered; that the unfiltered oil which Mr. McAfee gave him on January 22, 1913, .was exactly the same as the oil made by that process; that since February 5 he many times filtered oil which he knew to be made by the process just defined; that he always found it to have a light color; and, finally, that there was no difference between the color of the oil filtered by him under the direction of Mr. McAfee on January 22, 1913, and the oil which he knew to be made by the process just referred to, being the process defined in the counts. He fixes January 22 as the date upon which he received the oil from McAfee, because, as he asserts, on the second night after he commenced his work with the latter, the still blew up, and McAfee's note-book shows that this happened on January 23. King was not cross-examined. This is a significant circumstance and tends to show that Gray did not believe that he could develop that King was lacking in the knowledge which his answers implied, and hence was not telling the truth. If King was, as Gray claims, a mere stillman who "had no chemical knowledge or skill in manipulation" it could have been easily disclosed by an intelligent cross-examination. We believe that King told the truth and therefore fully corroborated the testimony of McAfee as to the work done on January 22 and February 5, 1913. As to the date on which the invention was reduced to practice, McAfee, in his report to Gray March 4, 1913, shows that he had accomplished the reduction sometime before. The exact date is not disclosed, nor is it material in the view which we take of the matter. Gray does not deny that McAfee reduced the invention to practice, nor does he contend that he did any work on the process himself, his theory being that the reduction to practice was accomplished by McAfee acting in pursuance of his directions, and therefore, on the doctrine of principal and assistant, he is entitled to the benefit of McAfee's work. With respect to the origin of the invention, Gray testified that he did not conceive it before the 3d of February, 1913. On that date, according to him, McAfee was in his office with several samples, one a standard white oil which had been treated with anhydrous aluminum chlorid and which was considerably lighter in color than standard white oil. At this time McAfee also showed him a sample which he declared, according to Gray, was the residue which had been left in the still after the manufacture of gasolene by means of anhydrous aluminum chlorid. This residue was a light green in color. Gray further said that in ordinary operations a residue from distilling paraffin gas-oil down and leaving a small percentage in the still, would have been very dark in color. This product, however, was very light, being, as we have related, a light green. He talked the matter over with McAfee and later wrote him to treat a sample of gas-oil in the same manner that lubricating-oils had been treated, and then distil it with aluminum chlorid, holding the temperature of the still as low as possible "to make the maximum yield of gasolene." The letter containing these instructions was written by Gray on February 4, 1913. This letter, according to Gray, revealed the plan which led to the invention. We do not think so. As we read it, there is nothing in it which discloses any thought on his part of improving the color of lubricating-oil. On the other hand, it clearly shows that what he had in mind did not relate to lubricating-oils but to a process by which, as he writes to obtain maximum yield of gasolene having a final distillation point of 350. This is the only testimony upon which Gray relies to show conception by him on February 4. It is entirely insufficient. Besides, the record shows that almost two years after the date on which he now claims he conceived the invention, he was not at all clear about it. In his preliminary statement made in June, 1914, he said that he conceived it January, 1913, and he repeated this in November, 1914, when he made his preliminary statement as to the added counts 6 and 7. This uncertainty necessarily lessens the weight which his testimony upon the subject would otherwise have. True, McAfee was not always consistent, but he adhered rigidly to his first statement with respect to the date upon which he claims to have conceived the in vention. Gray, in our opinion, has completely failed to show conception by him on the date claimed, February 4, 1913. But even if it were otherwise, it would be immaterial if McAfee had conceived the invention in December or January before. McAfee's testimony on this point, which is fully corroborated by King, clearly establishes that on December 4, 1912, or at least in January, 1913, it matters not which since in either event it would be ahead of the date of conception claimed by Gray, he conceived the thought that the color of lubricating-oil might be improved by heating it in the presence of aluminum chlorid. This is the idea for which he claims a patent. There is no material contradiction either of his testimony or of King's. And while this in itself would not warrant us in holding the testimony conclusive, we must do so unless the record discloses some good reason why we should not, (United States v. Leu Huen, 118 Fed. Rep., 442 ; Quock Ting v. United States, 140 U. S., 420; Cavanagh v. Wilson, 70 N. Y., 177; Wait v. McNeil, 7 Mass., 261; Murphey v. Virgin, 47 Nebr., 692), and we perceive none. We are also of the opinion that when McAfee reduced the invention to practice he was acting independently of Gray, and therefore he, and not Gray, is entitled to the benefit of what he accomplished. It follows that McAfee should be given priority as to counts 1, 2, 3, 4, and 5. This leaves counts 6 and 7 to be considered. They call for the treatment of oil produced by the process of the other counts, before filtration with sulfuric acid. McAfee in his report to Gray, June 13, 1913, said: Dr. Dengler has apparently solved the difficulty completely and satisfactorily. He treats the oil containing the suspended solid with fuming sulfuric acid * * * and the color is further apparently improved. This is an admission on the part of McAfee that Dengler was the inventor of the process covered by counts 6 and 7. Gray does not claim to have made the invention himself, but asserts that he put Dr.' Dengler to work with instructions and, therefore, that whatever Dengler discovered in pursuance of those instructions belongs to him. There is nothing in the instructions which he gave to Dengler that would indicate the steps pursued by the latter as described in McAfee's report. Gray's testimony on this point is: I had given instructions for another man to be placed on this work to hasten it. This party was Dr. Dengler. But he nowhere says that he gave Dengler any plan by which the latter could solve the difficulty which confronted him. Hence we do not think Gray is entitled to what Dengler discovered. Dr. Dengler when he made his invention reported it to McAfee and McAfee, as we have seen, revealed it to Gray on June 13. McAfee, therefore, was in possession of the invention before Gray, and, as between him and Gray, Dengler not being before us so that his rights can be passed upon, McAfee is entitled to priority. The decision of the Assistant Commissioner is reversed and priority of invention as to all the counts is awarded to Almer M. McAfee. Reversed. [Court of Appeals of the District of Columbia.] IN RE ESTATE OF P. D. BECKWITH, INC. 252 O. G., 245; 48 App. D. C., 110. 1. TRADE-MARKS-REGISTRABILITY-DESCRIPTIVE. Where a trade-mark contains as its dominant features words aptly descriptive of the goods to which it is applied, Held that registration should be refused. 2. SAME-SAME-SAME-MOIST-AIR HEATING SYSTEM. The words "Moistair Heating System as applied to hot-air and combined hot-air and hot-water heaters and furnaces Held descriptive, and therefore unregistrable. 3. SAME-SAME CONFUSION IN TRADE. In order to protect the public against confusion in trade, Held that the Commissioner of Patents may anticipate inevitable confusion and refuse to grant a monopoly in a mark which is not only descriptive, but contains the common trade name of similar commodities in a general class of merchandise. 4. SAME SAME ELIMINATION OF DESCRIPTIVE MATTER. Held that the objection to descriptive matter in a trade-mark cannot be overcome merely by a disclaimer, but must be eliminated from the mark. Mr. H. C. Howard for the appellant. Mr. T. A. Hostetler for the Commissioner of Patents. VAN ORSDEL, J.: This appeal is from the decision of the Commissioner of Patents denying the application of appellant for the registration of the following trade-mark for "hot air and combined hot air and hot water heaters and furnaces" The Commissioner tendered registration of the figure with the words "Moistair Heating System " eliminated, which appellant refused-hence this appeal. The reason assigned by the Commissioner is that applicant has an exclusive right to all these features except the phrase "Moistair Heating System," and it has in common with the public generally also the right to use, but not to register, these descriptive words. The Trade-Mark Act of February 20, 1905 (33 Stats. L., 724), in section 5, among other things, provides— that trade-marks which are identical with a registered or known trade-mark owned and in use by another, and appropriated to merchandise of the same descriptive properties, or which so nearly resemble a registered or known trademark owned and in use by another, and appropriated to merchandise of the same descriptive properties, as to be likely to cause confusion or mistake in the mind of the public, or to deceive purchasers, shall not be registered: Provided, That no mark which consists merely in the name of an individual, firm, corporation, or association, not written, printed, impressed, or woven in some particular or distinctive manner or in association with a portrait of the individual, or merely in words or devices which are descriptive of the goods with which they are used, or of the character or quality of such goods, or merely a geographical name or term, shall be registered under the terms of this act. It must be conceded that the words "Moistair Heating System " are descriptive of the merchandise on which the mark is used and for which registration is sought. These words, standing alone, are clearly unregistrable, and are open to public use, limited only by the principles involved in unfair competition. If these words constitute an essential feature of the trade-mark, it is sufficient to defeat registration. A mark, certain features of which are merely suggestive of character or quality, is one thing; but a mark like the present, which contains as its dominant feature words aptly descriptive of the character or quality of the goods to which it is applied, is quite another thing. In such cases, where the descriptive words are the dominant feature of the mark, registration should be denied. (Johnson v. Brandau, C. D., 1909, 298; 139 O. G., 732; 32 App. D. C., 348; in re Schweinfurter, C. D., 1912, 455; 177 O. G., 243; 38 App. D. C., 279; in re Excelsior Shoe Co., C. D., 1913, 465; 196 O. G., 805; 40 App. D. C., 480; in re Motz Tire and Rubber Co., C. D., 1913, 459; 193 O. G., 513; 40 App. D. C., 487.) The statute not only prohibits the registration of marks which are descriptive, but of marks which would be likely to cause confusion in trade. "Moist air heating system" is the trade name of a large class of merchandise. There are numerous styles of "hot air and combined hot air and hot water heaters and furnaces" manufactured and on the market, on which the owners are entitled to use the common designation here sought to be monopolized. The statute does not contemplate that the Commissioner shall register a mark with descriptive words in it, and wait until another applies for registra |